A Ninth Circuit panel last Friday concluded (per Judge Smith) that (i) pretextual use of the material witness statute violates the 4th Amendment and (ii) this was sufficiently clear in 2003 so as to preclude a qualified immunity claim by former Attorney General John Ashcroft. The panel also rejected an absolute immunity claim, and rejected certain other causes of action.

The opinion obviously is quite significant, and almost certainly headed for further review. Combined with a partial dissent from Judge Bea, the opinions in the case run to 91 pages. Fortunately Orin Kerr (GW) has posted a thorough and insightful analysis here. I agree with his take across the board, and so will not try to reinvent the wheel here. I will, however, provide a key portion of his analysis just to make sure that the point is conveyed to those of you who don’t have time to click through and read Orin’s full assessment. On the Fourth Amendment issue (and, by extension, the qualified immunity claim): Read the rest of this entry »